01A33052_r
04-15-2004
Cassandra Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cassandra Johnson v. United States Postal Service
01A33052
April 15, 2004
.
Cassandra Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33052
DECISION
Complainant filed a timely appeal with this Commission concerning the
agency's compliance with the terms of a November 22, 2002 settlement
agreement. The Commission accepts the appeal. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The November 22, 2002 settlement agreement provided, in pertinent part,
that:
(1) Complainant shall receive a total payment of $170,000.00. This
payment is the sum total of compromised compensation for the following
categories and amounts:
$15,000.00 for back pay, including overtime (if applicable).
Complainant's retirement, sick leave and annual leave shall be
credited in amounts temporally commensurate with back pay. In other
words, complainant shall be credited consistent with the percentage
of complainant's most recently recorded annual Postal income the
$15,000.00 back pay represents�if the $15,000 in back pay represents
one-half of complainant's most recently recorded annual salary, she
is to receive retirement benefits, sick and annual leave commensurate
to one-half year;
$20,000.00 for attorney fees.....
$10,000.00 for future pecuniary expenses;
$30,000.00 for past pecuniary expenses;
$95,000.00 for non-pecuniary damages.
Applicable payroll withholding will be taken from the $15,000.00 back
pay amount. Complainant is responsible for any federal, state and/or
local taxes that may result from receipt of the remaining $155,000.00.
Complainant shall be reinstated as a USPS employee at level 6 or
above. Complainant shall begin working with duties and under the
conditions specified per �Attachment 1" on November 23, 2002 at 1600.
A chair designated for complainant's exclusive use shall be provided
by management.
By letters to the agency's legal counsel, dated January 6, 2003
(hereinafter referred to as �letter 1") and February 28, 2003 (hereinafter
referred to as �letter 2"), complainant, through her attorney, claimed
that the agency breached the settlement agreement.
In letter 1, complainant claimed that the agency failed to provide a
suitable chair. Specifically, complainant claimed that the only chair
available for her use was mechanically unsuitable to accommodate her
disability, and she had to share it with a co-worker. Additionally,
complainant noted that several mark-up clerk jobs were available which
she could perform without an accommodation, but that because the agency
classified her as a �workers' compensation/limited duty employee,� she
was not eligible for these positions. Complainant argues that assignment
to one of these positions would have the effect of accommodating her
disability, and requests that the agency assign her to a mark-up clerk
position at its Royal Oak facility. Complainant also claimed that the
agency improperly assigned her as a Level 6, Step H, rather than Step
M, and improperly classified her as a �re-hire� with an entry date of
�11-23-02,� which adversely affected her pay, vacation, sick leave and
retirement. Furthermore, complainant argues that her entry date was
to be adjusted depending on what percentage $15,000 was of her salary,
asserting that the $15,000.00 amount is equivalent to 8.53 pay periods.
Complainant additionally asserted that based on this same adjustment
calculation, she should be restored 51.93 hours of annual leave and 34.12
hours of sick leave. Complainant claimed that she received neither, and
noted that agency's personnel office notified her of computer problems
in accomplishing this transaction.
In letter 2, complainant claimed that the agency failed to comply with
the matters identified in letter 1, and that she would file a motion
to compel compliance. Additionally, complainant claimed that the
agency acted in bad faith regarding the tax consequences of the various
designations of the lump sums awarded to her.
On April 28, 2003, complainant filed the instant appeal. Therein,
complainant stated that the November 22, 2002 settlement agreement
was negotiated during the damages phase of a hearing before an EEOC
Administrative Judge, regarding three consolidated complaints where
the Commission made a finding of discrimination due to the agency's
failure to provide her with a reasonable accommodation, a suitable chair.
Complainant claims that the purpose of the settlement agreement was to
reinstate her to work, because she was compelled to retire in December
1999, and to provide her with a suitable chair as of the first day of
her return, November 23, 2002. However, complainant contends that the
chair was not provided until January 2003, after months of prodding by
her attorney. Additionally, complainant now alleges two violations of
the settlement agreement.
First, regarding provision (1)(A), complainant contends that her
annual and sick leave, and retirement, have not been credited in
amounts commensurate in time with the back pay award. In particular,
complainant notes correspondence from the agency dated February 14,
2003, indicating that it could not comply with this provision and
instead offered complainant cash for the sick and annual leave.
Complainant argues that the agency further breached this provision
by failing to credit complainant with retirement hours. Additionally,
complainant makes reference to correspondence from the agency dated April
25, 2003, confirming that it would pay complainant cash for the annual
and sick leave at issue. Complainant claims that the agency's offer of
cash constitutes evidence that the agency did not adjust and credit
her retirement, annual, and sick leave as mandated by provision (1)(A).
Furthermore, complainant argues that this provision requires the agency
to adjust complainant's starting date so that she is credited for her
retirement hours, and annual and sick leave.
Second, regarding provision (1)(F), complainant contends that the
agency placed her in an improper employee status, under �workers'
compensations principles,� (described as �limited duty assignment�), and
not as a disabled employee (described as �disabled employee accommodated
with light duty�). Complainant argues that this placement restricts her
ability to transfer, and requires her to continually provide documentation
to verify her impairment. Complainant also argues that the agency
deceived her in this regard, and improperly failed to advise her of
the availability of mark-up clerk positions, or to otherwise place
her in a mark-up clerk position, arguing that her light duty status
restricts her to only light duty assignments. Complainant avers that
she would not have entered into the settlement agreement if she had
realized the impact of being characterized as a �workers' compensation
employee.� Complainant, through her attorney, further contends that
agency counsel initially agreed to change complainant's designation,
but that his replacement has failed to follow through on this matter.
Complainant avers that this action amounts to a failure to accommodate
her disability. Complainant requests that her complaint be reinstated
at the point at which processing ceased.
In response, the agency asserts that complainant failed to file a
breach claim with the EEO Director, as required by 29 C.F.R. � 1614.504,
instead working through the agency's legal counsel. The agency argues
that complainant's failure to file a breach claim with the EEO Director
prevented the agency from investigating and remedying the matters raised
by complainant. The agency further argues that because its EEO office
did not have the opportunity to investigate the breach claim and so did
not issue a determination on the claim, the instant appeal is premature.
Nonetheless, in addressing the breach claims, the agency indicated that
the income tax dispute, as reflected in letter 2, is now resolved. As to
complainant's claim of breach regarding provision (1)(A), the agency
argues that because complainant �tacitly accepted� the agency's offer
of $1,700, in lieu of crediting her leave balances with annual and
sick leave, she cannot properly assert that this constitutes a breach.
The agency further argues that restoration of leave as contemplated by
provision (1)(A) was administratively burdensome, and that complainant
was not harmed by the offer of cash, such that this offer cannot be
viewed as a material breach.
Regarding provision (1)(F), the agency argues that complainant
misunderstands �light duty� status, and avers that complainant's
placement, including her job assignment and employment �status,� were
specified in an attachment to the settlement agreement, which is an Office
of Workers Compensation Programs (OWCP) job offer. The agency claims
that because it fully adhered to the assignment specified in the attached
OWCP job offer, it did not breach provision (1)(F). Furthermore, the
agency asserts that �light duty status� does not prevent an employee from
being considered for other positions, and that complainant's arguments in
this regard evidence a fundamental misunderstanding of this designation.
Additionally, the agency argues that complainant raises a new claim
outside the scope of the settlement agreement regarding her request for a
mark-up clerk position, which must be processed as a separate complaint.
The agency further argues that even if complainant prevailed in her
breach claim, the Commission is unlikely to order reinstatement of
the complaint, given the large cash award received by complainant, and
relatively minor nature of the alleged breach. The agency also argues
that complainant is not entitled to an award of attorney's fees, noting
that complainant's attorney filed the instant appeal prematurely.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
As an initial matter, we find that although the record indicates
that complainant did not file her breach claim with the EEO office,
she did send letters 1 and 2 to the agency's legal counsel, which was
sufficient to put the agency on notice of the breach claim. Moreover,
upon notice of the instant appeal, the agency had an opportunity to
undertake any additional investigation that it deemed necessary, and
submit its determinations to the Commission. Accordingly, given that
the agency had adequate notice of the breach claim, and opportunity to
undertake an investigation, we find that complainant's failure to submit
her breach claim to the EEO Director constitutes harmless procedural
error, and that this appeal is properly before the Commission.
Provision (1)(A)
Complainant asserts that this provision mandates that her leave
balances be credited with additional hours of annual and sick leave
(51.93 hours of annual leave and 34.12 hours of sick leave, assuming
that $15,000.00 represents 8.53 pay periods), and that complainant's
start date be �adjusted� back by 8.53 pay periods for the purpose of
computing retirement benefits. On the other hand, while the agency does
not proffer any interpretation, it nonetheless avers that the payment
of $15,000.00 in back pay and lump sum cash payment for the calculated
amount of sick and annual leave, constitutes substantial compliance with
this provision in light of the evidence that its computer system will
not accept the adjustment to complainant's leave balances. The agency
does not address its obligation regarding tender of additional retirement
benefits to complainant.
The Commission determines that agency correspondence dated February 14,
2003, reflects that when complainant's personnel office encountered
technical difficulties crediting her leave balances, the matter was
referred to a specialist at its headquarters, who �recommended� a cash
payment in lieu of a leave adjustment. This correspondence further
reflects that its computer system would not accept the leave adjustment
without a concomitant adjustment in work hours. Based on this evidence,
we find that the agency is claiming that it cannot preform its obligation
as specified in this provision. However, we find that the record is
not sufficiently developed to determine whether it is (a) technically
impossible for the agency to make this leave adjustment; or (b) if
possible, whether it would constitute too great of an administrative
burden for the agency to implement the adjustment. Without this evidence,
we cannot ascertain whether an �in lieu of cash� payment is justified.
We find no evidence that complainant �tacitly accepted� the agency's offer
as a cash payment to satisfy this provision. Based on complainant's
appeal statement, it is clear that she does not find this to be a
satisfactory alternative. Moreover, we find that the agency simply
does not address its obligation regarding retirement benefits, and the
record is devoid of any evidence regarding an adjustment to complainant's
retirement benefits. Accordingly, we determine that the agency's finding
of no breach of provision (1)(A) is VACATED. This matter is REMANDED
to the agency to obtain information regarding these matters.
Provision (1)(F)
On appeal, complainant concedes that the agency provided complainant
with a suitable chair, and does not appear to be pursuing her breach
claim regarding this matter. However, complainant contends that the
agency placed her in a duty status which substantially reduces her
chances to transfer to another position, which was not understood at
the time of execution.<1> Specifically, complainant avers that she
desires a mark-up clerk position in the agency's Royal Oak facility,
which would accommodate her disability, but is not eligible for that
position because of her light duty status.
The Commission determines that provision (1)(F) makes reference to an
attachment to the settlement agreement, which describes complainant's
assignment. Review of this attachment indicates that it is an offer
of a limited duty assignment, based on complainant's OWCP approved
injury. The record is devoid of any evidence to confirm what type of
assignment the agency actually placed complainant in, i.e., light duty
or limited duty. In this regard, we find that placement in a light
duty assignment, rather than the specified limited duty assignment,
could constitute a breach of this provision. Accordingly, we find that
evidence confirming which type of assignment complainant has is crucial
to this determination. Therefore, we REMAND this case to the agency
to obtain evidence documenting whether complainant is serving under a
light or limited duty assignment.
Finally, we agree with the agency that complainant's claim concerning her
desire for an assignment to a mark-up clerk position as a reasonable
accommodation for her disability must be construed as a separate
complaint. See 29 C.F.R. � 1614.405(c). We advise complainant to contact
an EEO Counselor regarding this matter should she desire to pursue this
claim in the EEO process.
For the reasons set forth above, we REMAND this matter to the agency to
undertake additional development of the record, as set forth more fully
in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is to complete an investigation for the purpose of
obtaining additional evidence necessary to adjudicate complainant's
breach claim, as follows:
The agency is to provide a written assessment regarding whether or not
its computer system can accommodate the adjustments to complainant's
annual and sick leave contemplated by provision (1)(A) of the settlement
agreement, as described herein. If such an adjustment can be made, the
agency must provide evidence reflecting that the requisite adjustments
have been made, or if not, the reason for failing to do so.
The agency shall supplement the record with documentation reflecting
how it will implement the award of �retirement benefits� to complainant
under provision (1)(A), based on the additional 8.53 pay periods to be
added to these benefits.
The agency must obtain documentary evidence verifying whether complainant
has a �light duty assignment� or a �limited duty assignment.�
2. Upon completion of this investigation, the agency is ordered to issue
a final decision on complainant's breach claim, with appropriate appeal
rights to the Commission.
A copy of all pertinent documentation verifying completion of the above
actions, including issuance of a final decision, must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 15, 2004
__________________
Date
1We note that complainant's record statements variously describe her
duty assignment as both �light� and �limited.�